Judicial Authorisation of Cross-border Investigation Measures Conducted by the European Public Prosecutor’s Office: A Comment on the Grand Chamber of the Court of Justice of the European Union’s Judgment in the Case C-281/22

Abstract

On 21 December 2023, the Court of Justice of the European Union (hereinafter: ECJ) ruled on the question referred by the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) concerning the interpretation of Art. 31 para. 3 of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (“the EPPO”). The request for a preliminary ruling in Case C-281/22 was the first one regarding the EPPO Regulation to be decided by the ECJ. Article 31 para. 3 of the EPPO Regulation stipulates the judicial authorisation of cross-border criminal investigations conducted by the EPPO. Investigation measures ordered for this purpose are initiated and directed by a European Delegated Prosecutor (“EDP”) in the “handling”, i.e. requesting Member State and are carried out by an EDP in the requested “assisting” Member State. In the decision, the ECJ determined the scope of a judicial review in the assisting Member State. The judgment also has an impact on the national provisions of the participating Member States.